Amid criticism for deciding too many cases on its “shadow docket,” the Supreme Court nonetheless agreed to hear two lawsuits on Monday challenging Texas’s ban on abortions after six weeks. The Justices are generous to grant the plaintiffs expedited review, but neither legal challenge belongs in federal court.

Despite what you read in the press, abortion rights aren’t directly at issue in either case. The Court rejected Texas’s request to discuss the law’s merits on abortion. Instead, the Court will consider in Whole Woman’s...

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Amid criticism for deciding too many cases on its “shadow docket,” the Supreme Court nonetheless agreed to hear two lawsuits on Monday challenging Texas’s ban on abortions after six weeks. The Justices are generous to grant the plaintiffs expedited review, but neither legal challenge belongs in federal court.

Despite what you read in the press, abortion rights aren’t directly at issue in either case. The Court rejected Texas’s request to discuss the law’s merits on abortion. Instead, the Court will consider in Whole Woman’s Health v. Austin Reeve Jackson whether Texas can dodge federal court review by outsourcing enforcement to private parties. The question in U.S. v. Texas is whether the Justice Department can seek an injunction in federal court against the state.

The Texas law prohibits enforcement by state officials, instead authorizing private citizens to sue anyone who performs, aids or intends to perform or aid an abortion after a heartbeat is detected, which is usually around six weeks. Citizens who prevail are entitled to at least $10,000 in damages and legal fees.

The law in our view is clearly unconstitutional under the Court’s abortion precedents. But here’s the rub: Federal courts don’t have jurisdiction to hear the lawsuit by the abortion providers or the Justice Department. Full stop. Federal courts only decide cases and controversies between parties, and both plaintiffs lack legal standing to sue.

The Justice case is the easiest to dispense with. Justice says it sued because the law precludes pre-enforcement challenges by other plaintiffs. But the federal government hasn’t suffered a “concrete” and “particularized” injury—two requirements for standing. Justice says federal agencies that help arrange abortions could be harmed, but the federal government isn’t an abortion provider. In any case, federal officials have said in depositions that they are unaware of any harm or disruption to federal programs from the law.

Even if the Texas law is “unprecedented,” as Justice claims, the Constitution’s Supremacy Clause doesn’t grant the feds the freewheeling power to sue states whenever it believes they are abridging the constitutional rights of citizens. If that were the case, a GOP Justice Department could sue to enjoin Democratic state gun-control laws. Federal courts would then be dragged into arbitrating myriad political fights.

Justice also claims it can sue to vindicate the interests of the federal government under the “canonical precedent” In re Debs (1895). In that case, the U.S. sought a federal court injunction against the Pullman railroad strike, which was interfering with interstate commerce and mail delivery. The Texas law doesn’t interfere with U.S. sovereign powers or interests.

The problem for the abortion providers is that they have no one to sue. State officials aren’t enforcing the law, so the providers can’t sue them. The press is full of stories that the number of abortions has fallen in Texas since the law passed, but clinics can still perform abortions—albeit at the risk of a lawsuit.

But the minute a suit is filed, an abortion provider’s lawyer can move to dismiss on grounds that the law violates Roe v. Wade. Then there would be a proper case or controversy in state court. Texas courts could uphold the law, but such a decision by the state’s highest court would be reviewable by the U.S. Supreme Court.

Abortion providers say it could take months or years of litigation before the law is enjoined. But an immediate injunction is also possible given the threat to a constitutional right as long as the Supreme Court’s abortion precedents haven’t been overturned.

One mystery is why the Court agreed to take these cases. Five conservative Justices were criticized, including by their colleagues on the bench, for declining to enjoin the Texas law in September. Perhaps they want to elaborate beyond the language of that terse order so the public can better understand the legal principles at stake.

The Texas law will almost certainly be struck down in due course as long as Roe v. Wade remains the law of the land. But upholding the Supreme Court’s standing principles is also crucial to the rule of law, as Chief Justice John Roberts in particular has long held. In dismissing the importance of legal standing, progressives sound like Donald Trump when he derides the Court for refusing to hear his challenges to the 2020 election results. A bad Texas law doesn’t justify setting a bad judicial precedent.

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